[2018] KEELC 447 (KLR)
The court found that the allegations of fraud and the challenge to the processes of subdivision, transfer, and consolidation of the subject land parcels directly implicated the statutory functions of the County Land Registrar and County Surveyor. Their participation was deemed necessary for a fair and effective...
Source-derived case information.
- Citation
- [2018] KEELC 447 (KLR)
- Parties
- Plaintiff: Naomi Chepchumba Ongira; Defendant: Kibor Arap Busienei; Defendant: Nandi County Land Registrar; Defendant: Nandi County Surveyor; Defendant: Honourable Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 345 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Enjoin Parties and Amend Plaint
- Outcome
- application allowed
- Judges
- A Ombwayo
- Legal Topics
- Joinder of Parties, Amendment of Pleadings, Land Registration, Subdivision of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Naomi Chepchumba Ongira
Plaintiff
Kibor Arap Busienei
Defendant
Nandi County Land Registrar
Defendant
Nandi County Surveyor
Defendant
Honourable Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Enjoin Parties and Amend Plaint
Legal Issues
- 1 Whether the Nandi County Land Registrar and Nandi County Surveyor should be enjoined as defendants in the suit.
- 2 Whether leave should be granted to amend the plaint to reflect the joinder of new parties.
- 3 Whether the participation of the County Land Registrar and County Surveyor is necessary for a fair determination of the dispute.
Ratio Decidendi
The court found that the allegations of fraud and the challenge to the processes of subdivision, transfer, and consolidation of the subject land parcels directly implicated the statutory functions of the County Land Registrar and County Surveyor. Their participation was deemed necessary for a fair and effective adjudication of the dispute. The court also recognized that the Attorney General should be enjoined to represent the interests of the government officers. The omission to join these parties initially was excusable, and the interests of justice required their joinder. Accordingly, the court granted leave to enjoin the Nandi County Land Registrar, Nandi County Surveyor, and the...
Court Disposition
application allowed
Orders
- The Nandi County Land Registrar is enjoined as the 2nd defendant.
- The Nandi County Surveyor is enjoined as the 3rd defendant.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 345 OF 2015
NAOMI CHEPCHUMBA ONGIRA...........PLAINTIFF
VERSUS
KIBOR ARAP BUSIENEI........................DEFENDANT
RULING
The plaintiff prays in the application dated 14th August, 2017 that leave be granted to enjoin the Nandi County Land Registrar and Nandi County Surveyor as the 2nd and 3rd defendants respectively and that the plaintiff be granted leave to amend the plaint. The application is based on grounds that the Land Registrar and Land Surveyor are crucial parties in this matter that the suit seeks to impugn actions of both the Nandi County Land Registrar and Nandi County Land Surveyor hence they cannot be condemned without hearing them.
The suit is seeking to challenge the process of subdivision of land parcel number NANDI/KIPSIGAK/690 into two portions being land parcels numbers NANDI/KIPSIGAK/1192 and NANDI/KIPSIGAK/1193. The suit is seeking to challenge the process of transfer and registration of the above- mentioned parcels of land in the name of the defendant herein. The suit is seeking to challenge the process of consolidation of land parcels numbers NANDI/KIPSIGAK/1192 and NANDI/KIPSIGAK/1193 into land parcel number NANDI/KIPSIGAK/1320.
According to the applicant, the statutory powers with respect of subdivision, transfer and consolidation of parcels of land within Nandi county in the Republic of Kenya are vested upon the County Land Registrar and the County Surveyor. The objective of the current suit is to revert back ownership of the subject parcel of land unto the Plaintiff which process will affect the exercise of the powers of County Land Registrar.The current suit will not be determined fairly without the participation of the County Land Registrar and the County Land Surveyor. The failure to enjoin the County Land Registrar and the County Surveyor was occasioned by an inadvertent mistake which is excusable.
In the replying affidavit of Elijah Momanyi Mogona, he states that to sue the proposed defendants would superfluous and that the court can determined the dispute without enjoining the proposed defendants.
I have considered the application and the replying affidavit and do find that there are allegations of fraud on the part of the defendants and therefore, it is necessary to enjoin the Attorney General on behalf of the defendants. I do order that the County and Registrar, County and Surveyor and Honourable Attorney General to be enjoined as the 2nd, 3rd and 4th defendants respectively. The plaint to be amended accordingly.
Dated and delivered at Eldoret this 19th day of December, 2018.
A. OMBWAYO
JUDGE